PART 3 – Incrementalism

I had to laugh as I started this section.  My spell checker did not even recognize the word incrementalism.    Apparently it is such an uncommon word that it is not in that “electronic dictionary”. 

As I have explained previously I am an engineer.  A computer engineer to be exact.  And I would have to say that since I entered the industry nearly three decades ago there have been a lot of changes.   You know what the funny bit is.  They did not happen all at once.

I know you are laughing at me right now.  You are saying, well of course they did not happen all at once.  What did you expect?  Yeah, we went from an 8086, to a 286, to a 386 to a Pentium and then a Pentium II, and so on.  You get the idea.  Each one was a little better, a little faster, a little cheaper and so on.  The development was, oh, wait for it.  Incremental.  Go figure.  And you know what, that is the way most of the world works.  Very little changes instantaneously over night.  I contend that when it does, we just happened to notice it.  And the change had been happening for a long time previously.  Like those mushrooms that appeared overnight in your front yard.

And so it goes with law and public policy too.    I am not saying for an instant that there are not leaps.  They certainly happen.  But like the fault line in an earthquake, they are usually the result of a lot of forces that have built up over time.

I have heard a lot of folks comparing the struggle of Trans rights to those of race and in particular of black Americans.  I would say to those folks.  Hardly.  I keep looking on TV to see a modern Bull Connor with fire hoses and German Shepherds nipping at at the heels Transpeople on the street.  Of a Trans support group being bombed by an organized set of hoodlums   Of a great Trans leader standing on the steps of the Lincoln Memorial with thousands of Transpeople looking on cheering.  Of a groundswell of average white people saying “well enough is enough let’s fix this thing.”  Yeah, it is exactly the same as that.  Not.

That struggle took more than one hundred years to get to where it had critical mass.  The nation fought a war over such things, and that was just the start.  
And so to claim our struggle is anything like that would lead me to feel insulted if I was a black woman, let alone a black Transwoman.  The reality is I can empathize with that struggle.  But I can never know it.  And to presume I do is at best, insincere and arrogant.

And so when I look at my home state of Maryland and I hear noise about HB235 being a sellout.  And that we should take lessons from the civil rights movement of the 60’s and that what did not work then will not work now.  Or what did then will work now too.  I have to say nonsense.  Everything in the world is incremental.  Now I will demonstrate that point.

Even if HB235 had public accommodations in it and even if it could pass and survive a referendum, guess what, it would still be incremental.  Because it would not give you total equality.  It would not get you health insurance that has Trans specific care in it.  It would not protect you if you ended up in the criminal justice system. And, wait for it, it would not give you the right to sue somebody for refusing to sell you a hamburger because you are Trans.

Now I have your attention.  You see Maryland’s existing public accommodations law is very weak, and under it, unlike in employment and housing, there is no right to sue for it. Someone being denied a public accommodation can file a complaint with the Maryland Commission on Human Relations, but this weak law only allows the commission to order the place to stop discriminating in the future, and the place can be fined $500 for the first offense (and the money that the discriminator pays goes to the state coffers, not the person who experienced discrimination).  And for those keeping track of facts this is the real reason Sandy Rawls pulled her support from the bill.  Ask her…

Let me make this clear.  We have been seeking equality.  Not superiority.  And so even if we put the public accommodations in HB235, guess what.  It is a paper tiger.  It means nothing.  Or at best it means $500 for a business who messes up.  You can read up on it all here:

So in looking at incrementalism there are two kinds in play here.  The first is time.  You get something, you wait a bit, you get more.  The second is in space.  And by space I mean local government.

There have been charges tossed out there that you MUST have a state law.  That it is the only solution.  Really?  I guess the well over 100+ other U.S. municipalities with gender identity protections missed that point and went ahead on their own.  And in point of fact it exists right here in Maryland, right now.  Montgomery County and Baltimore City have protections.  So I guess the feared “Balkanization” of the state is already underway.  And have there been problems?   I have not heard of any riots in adjacent counties as a result.  Nor has there been a flood of folks to, or from, Montgomery County that I am aware of.  Perhaps somebody else has data.

In point of fact the Maryland State Code, via article 49B, allows certain counties/cities to enact their own discrimination laws, separate from the state.  I kid you not.  It has and can be done in Baltimore City, Baltimore County, Howard County, Montgomery County and Prince Georges County.  How about that for precedent?  Here, don’t take my word for it, go read the ordinances yourself.

Local Ordinances

• Baltimore City Code Art. 4 §1-1, et seq.

http://cityservices.baltimorecity.gov/charterandcodes/

• Baltimore County Code §29-1-101, et seq.

http://www.amlegal.com/baltimoreco_md/

• Howard County Code §12.200, et seq.

http://library2.municode.com/default-test/home.htm?infobase=14680&doc_action=whatsnew

• Montgomery County §27-1, et seq.

http://www.amlegal.com/montgomery_county_md

• Prince George’s County Div. 12 §2-185, et seq.

http://egov.co.pg.md.us/lis/

So if our counties and cities, at least the most progressive ones, found that the right way to proceed in Maryland was to do things this way where should you be adding additional protections on public accommodations?    Do you think it is easier to convince the Howard or PG County Council to act as opposed to our fearful state legislators?  That assuming there is a referendum on the matter that it is easier and more likely to defend it at the county level rather than the state?  I do.  And the funny thing is, so did somebody else long before me.  Otherwise this framework would not already be in place.  Let's use the tools that are already in front of us.

If I missed a point or got my info wrong please let me know.  I confess I am not a lawyer, or a politician and there is a possibility that my interpretation of this is not correct.  If so please offer some backup rather than just belligerent assertion. 

So let me wrap this one up.  Adding public accommodations to HB235 will do almost nothing to help the community.  It at best creates a slap on the hand to an offender.  With respect to public accommodations Incrementalism is the only way you can add something that might remotely have some impact, and the fact is it is already how we do this with respect to discrimination in Maryland.  Let’s not reinvent the wheel.

PART 2 - Linkage – Why same sex marriage and gender identity protections are not linked

Before beginning this section it is important to understand that the legislature of Maryland meets for a short term.  A mere 90 days in the year.  That means that all bills that are to become law must be introduced, referred to committee, reviewed, hearings held, floor votes taken and then it needs to be done all over again in the other chamber as we have a House of Delegates and a Senate.  In the scheme of things, that is not a long time to do anything.

And so if you had two items of business with the legislature you would probably need to get both queued up at nearly the same time.  And of course that is exactly what has happened in Maryland with respect to HB235 the Gender Identity Anti-Discrimination Act and SB116/HB55 Religious Freedom and Civil Marriage Protection Act.  Both of these bills are of interest to the LGBT community in Maryland and both have been endorsed by Equality Maryland.

When HB235 was introduced without public accommodations there were many in the Trans community that made the statement that our LGB “friends” had thrown us “under the bus” yet again.  And one could make an uninformed decision that the removal of that language was somehow “bartered” away in a proverbial “smoke filled room”.   That in order to garner support for marriage equality the LGB part of the world had sold off our rights in the process.

That sort of thinking makes a couple of assumptions.   The first is that such a discussion was actually even had and the second that the terms of the barter were put forward by LGB lobbyists and not the legislators themselves.  The reality is that the only coupling is the calendar.  And in this case the legislators told us, if you put public accommodations in HB235 the bill will never see the light of day.  Period.  If you like you can ask the sponsors of the bill, they will tell you.  Sandy Rawls did.

I am reminded by the old discussion of cause and effect.  It is a well known fact that in Summer months ice cream sales go up.  And in those same months in most urban areas the crime rate goes up.  Quite naturally it is reasonable to assume then that increased ice cream sales lead to more crime.  Or is it that the crime leads people to eat more ice cream, I forget which.    Obviously that argument is fallacious.  It is probably most likely due to the heat, and the fact that people are out-of-doors more.  But even those assumptions in the absence of real data could be suspect.  And so it goes here in Maryland with these two bills.

Let’s take a closer look without the “gut reaction”.  Marriage Equality as an issue can stand on its own two legs.  I am pretty sure this is the case.  In the wake of the repeal of DADT, the events surrounding the Proposition 8 case in California, and even in our own state, where the Attorney General and Governor have agreed to the recognition of same sex marriages from out of state, it is pretty clear there is a sea-change underway.   Meaning there is a body of supporters for this notion.  Be they citizens, activists, lobbyists or legislators.   And the interesting bit is that the arguments for Marriage Equality are not made stronger or weaker by the presence of a completely independent gender identity bill.  In point of fact it has no effect at all.   

I would challenge the critics to point out which legislator changed their position on Marriage Equality because public accommodations were not present in HB235.  Go ahead, tell me which legislators?    The answer is none.  And absent that smoking gun, or even the hint of gunpowder residue there is no case to be made.    And even  if a legislator did make that assertion, do you really think he/she would care about alienating a few transpeople?  I doubt it.  He could just oppose the gender identity bill outright.

Those saying it was taken off the table because it jeopardizes marriage equality missed the point.  The marriage equality issue is so fundamental to the LGB community do you not think that if trans rights were in the way of that in any way at all that “they” (Gay Inc. as I keep hearing) would have not even bothered to promote a Trans bill at all in Maryland.  I mean if your eggs are in one basket then let’s go “all in”.  Why would you even bother allocating any resources for a second battle?   Especially with the money you got from folks to specifically fight the first one.  I am pretty sure that there have not been any non-trans LGB folks that when sending in support dollars to their lobbyist organization that said, “Please make sure my money is spent on the Gender Identity bill exclusively”.  The reality is the opposite was probably true. 

Seriously, how do getting Trans rights benefit LGB people?  Um, they don’t.  And yet, despite that reality, organizations like EQMD are still pushing a bill for us.   And then when they come and back a bill with rights for us we criticize them, question their motives and commitment, call them names,  and vilify them.  Frankly, if I was on that team I might just take my ball and go home.  And yet, they still do not do this.

And if we do not like the bill as it presently stands who took the time to meet with their legislators in 2009 and 2010 to help craft the present legislation?  Go ahead, I’ll wait for you to raise your hands.  All you folks out of state with so much to say, put your hands down, you do not live here.  Just the locals ok?  Hmm, not too many hands up.   Ok if you did not do that then you at least met with your activist and lobby organizations to ask them what they were doing to get a bill introduced, right?  No, you did not do that either?  Um, ok, well at least you sent them some money so they could do the heavy lifting for you on your behalf right?  How’s that?  You did none of that?  And now you are upset?  If that is the case then why do you think you have a right to be the Monday morning quarterback of the game. 

And there is the rub.  We Transfolk are not well organized, we are not involved (please hold your cards and letters, I know there are some that are indeed involved, and committed and dedicated).  I am talking about Maryland now.  Where I live.  Where I have lived for two decades.  Where I have transitioned, in place.  And the truth is our numbers are small, our wallets are shallow, and our time is limited as many of us are just trying to make ends meet.  And so as a “class” we are under represented and unheard.  And so my take is that when you get some “friends” who say we would like to help.  You should probably take them up on it.  But you should never forget that help comes with its own agenda.  And when you accept it you have to accept that too.

My last thought is that we complain about Marriage Equality being the total focus of the LGB groups, clearly this is critical to them. But the reality is that Marriage Equality is critical to Transpeople too.  Look at the Nikki Araguz case in Texas.  Given the orientation diversity I have seen in the Trans community I would say Marriage Equality should be at least as important to us as our LGB allies if not more so.   Maybe we should stop tossing rotten tomatoes and eggs at them for a moment and have a conversation?  I am, how about you?

PART I -Politics in Maryland - The reality of how law is made

For a moment let’s completely ignore what is in a given bill presently and talk about the mechanics of the situation in Maryland.

Presently only thirteen states and the District of Columbia have gender identity protections. For those who are math challenged that is about 26% of the US by state and by population it is presently 29% of the American public. This would not include any local jurisdictions who offer gender identity protections, like the 109 local ones as of 2009.  And according to my good friend Mara Keisling of NCTE that number is actually about 40% nationwide.

For those wondering who covers what take a look at this from 2009:

http://www.transgenderlaw.org/ndlaws/

That list could stand some freshening clearly, but it shows enough to illustrate the idea.

And if you consider that there are so called “liberal” states notably absent from that list (eg, Massachusetts, Maryland and New York) one has to ask, what is the problem?  For our purposes I will just focus on Maryland, as this is where I live.

The Referendum Problem in Maryland

Maryland is one of 23 states that have a legislative referendum system. That means if the voting public disagrees with a new law it can be challenged at the ballot box. In Maryland there is a window of time for those things to happen. And what that means is if you miss the window the law becomes reality and cannot be challenged again unless repealed by the legislature. However, once defeated in a public referendum you can rest assured that the law will never be brought up again in the legislature. Certainly not with whatever provisions made it unpopular in the first place.  For those needing reference to the details I refer you to the Constitution of Maryland.


For the next bit you will have to forgive me.  As an engineer I analyze things for a living.  So I was trying to understand why public accommodations had passed and stuck in other states and why such a thing was not possible in Maryland.  So bear with me while I digress a bit. 

Of the 13 states who have passed a public accommodation gender identity law only 6 are referendum states. And of those, only one, Oregon, comes close to Maryland’s absurdly low barrier to entry for a referendum to appear on a ballot.

[State, Percentage of registered voters required, Number of signatures needed]

• California, 5%, 433,971
• Illinois, 10%, 334720
• Maine, 10%, 55087
• New Mexico, 10%, 60771
• Oregon, 4%, 58142
• Washington, 4%, 120,577

• Maryland, 3%, 55736

Let's presume two reasonable things. For a group to oppose a new law first there is a cost to get the signatures, and then secondly once that is done there will be a challenge to those signatures by the opposition, also at a cost. And all of that before it ever gets to a statewide ballot. And assuming it does get on the ballot then you would need plenty of money (millions likely considering that you are in the Baltimore and Washington media market) to educate and sway the public to agree with your points, be they for or against.

And so if I was seeking a battleground for such a thing I would choose Maryland as I would get my best bang for the buck. This would be true for any law so opposed. Maryland is a “bargain”.

I contend that in those other states that barrier was perhaps too high, or the task to hard for opponents to mount, or maybe the proponents too well funded. I suppose that it could have happened in Oregon, but I do not know the politics of Oregon to comment further on why it did not happen there.

Money Talks

So regardless of your position on any bill in Maryland you need to consider this as a possibility of what could happen to your bill. And if you know for a fact that there is a well funded and organized opposition you must prepare for it. And presently there is indeed a well funded and organized opposition to all things LGB and T in our world.

So there are two ways to reduce this referendum item as a concern. One would be to have a substantial warchest to defend against the referendum effort, the second would be to diffuse the referendum from the start by not having a controversial bill. And one of the challenges that our lobbyist organizations in this state have had is raising funds, especially from the trans community to support trans issues. Even for marriage equality this is a problem. You see nobody wants to back something and then lose the investment in a referendum.

And to be very frank, if the matter goes all the way to a referendum there is likely no money presently in Maryland to defend against it. And with respect to any of the present bills the battle will have to be fought in preventing the referendum in the first place.

And the very sad part of this is that because we (the trans community) are underfunded we cannot win a battle resulting in a referendum on public accommodations at the state level. It just costs too much to do and there is no source to fund the effort. And so rather than hold all immediately obtainable rights for transpeople hostage, the bill that was currently introduced by legislators has purposely omitted public accommodation so that the other rights can be had right now, today.

There are those that would state that this is conceding defeat before we even get out of the gate. I would earnestly disagree. What we have done is decided to fight a battle, rather than an entire war in a single battle. Most struggles worth fighting for do not happen in a single shot. Previous efforts have failed repeatedly. Doing the same thing over and over again expecting a different result is often described as the height of insanity. This new approach is a formula and strategy for success that benefits all trans Marylander’s today.

And I contend that with job and housing security we can have the basis for funding our future efforts on the public accommodation, and a host of other trans rights, issues like health insurance as well. I frankly do not ever expect to see a public accommodation bill at the state level in Maryland because of the mechanics I have previously outlined but it will happen locally, as it has already in over 100+ other places in the US, county by county, city by city.

Rights, Rhetoric and Reality

[A four part essay]

Sharon Brackett

The present rhetoric surrounding the Maryland Gender Identity Ant-Discrimination Act, HB235 is remarkable in its vitriol and acrimony.    I have to question any behavior that divides our modest numbers into smaller and smaller ineffective factions.  And this is exactly what is happening with respect to this bill.  The crux of the issue is public accommodations.  Let me state before you read further, I am in favor of protections for those of us who need it with respect to public accommodations.  What I am not in favor of is the “all or nothing” approach to how it is accomplished.  Change is something that happens in stages, and steps, and rarely in one shot.

Given the “tl;dr;” (too long; didn’t read) effect of our modern world with sound bytes, slogans, tweets and other assorted quips I have broken this essay into sections.  And they will be posted sequentially over a period of days.  But for those who feel the need to read ahead here are the big issues I will cover. 

• Politics in Maryland – The reality of how law is made
• Linkage – Why same sex marriage and gender identity protections are not linked
• Incrementalism – Why this is presently only a battle in a much longer war
• Commitment – What does it take to “stay the course”

I might ask that you hold your tongues and acerbic tone, and try to elevate what you say to the level of discussion and honest debate.   A warning in advance to responders.  This is "my" blog.  If you are rude, make unsubstantiated charges or apply personal attacks in any form I will delete your posts/comments without warning.  There will be no warning shot across the bow.  I expect there will be some who disagree with me.  Please by all means do so, but when you do make sure you have some facts and data to back up your claims. 

For those who need credentials I am a 49 year old transwoman who has lived in Maryland for the past 22 years.  I am a parent of two teenage sons.  I am a business executive and employer in the state of Maryland.  By profession I am an engineer. I am not a lawyer, politician, or policy person.  I transitioned in 2010 and for those who are wondering, yes, a legal name change and yes there is an “F” on both my state and  federal documentation.  As to what medical procedures I have had that is my own business, thank you for asking.  I am the co-founder of TransParent Day and TransParentDay.org which promotes the love held between children and their transgender parents.  And I have been a supporter of Equality Maryland both financially and in terms of volunteering.  I receive no compensation for my efforts on their behalf and they have no authority over the content of this blog.


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